Abigail Noel Fisher, who challenged a racial component to University of Texas at Austin's admissions policy, speaks to the media outside the U.S. Supreme Court building during arguments in the case in October of 2013.
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Abigail Noel Fisher, who challenged a racial component to University of Texas at Austin's admissions policy, speaks to the media outside the U.S. Supreme Court building during arguments in the case in October of 2013.

Mark Wilson/Getty Images

Affirmative action in college admissions is once again under attack at the U.S. Supreme Court.

In 1978 and in 2003 the Court ruled definitively that colleges and universities could consider race and ethnicity as one of many factors in admissions, as long as there are no quotas. By 2013, though, the composition of the Court had changed and grown more conservative, and the issue was back in a case from Texas--a case that eventually fizzled that year but is back again now.

There is a long and often tortured racial history at the University of Texas. UT was segregated by law until 1950 when the Supreme Court, in a landmark decision, ordered the school to admit its first black student—the grandson of a slave.

By 1996, UT operated like most other state schools; it had a selective admissions system that sought to increase the number of minorities, using race and ethnicity as one of many factors in evaluating applicants. The affirmative action plan, however, ran into a buzz saw in the lower courts, which ruled that the university could not consider race in any way in admissions.

The number of minorities at the school quickly plummeted by 40 percent, sending the Texas political and educational worlds scrambling. Soon the state legislature enacted a law known as the "10 percent plan," guaranteeing anyone who graduated in the top 10 percent of his or her high school class a place at UT. Owing to the fact that Texas schools are largely segregated because they draw from racially and ethnically segregated neighborhoods, the 10 percent plan partially restored the number of minorities at UT.

But not enough.

As the minority population in the state surged, minority enrollment was still well below where it had been under the old affirmative action plan prior to 1996. So when the Supreme Court in 2003 reaffirmed the limited use of race as a factor in admissions, UT started using it again.

The way the system has worked since 2003 is that three-quarters of the UT slots are reserved by law for students who qualify under the top 10 percent plan (though the actual percentage these days is closer to 7 percent).

The other quarter of the seats are filled by a system called holistic review--combining class rank with SAT scores, independently-graded essays and other factors like leadership, awards, special skills — and race and ethnicity.

A White Student Challenges UT's Policy

Enter Abigail Fisher, a white student who didn't get in to UT in 2008 and claimed she was the victim of discrimination because of her race.

"There were people in my class with lower grades who weren't in all the activities I was in, and who were being accepted into UT, and the only other difference between us was the color of our skin," Fisher said.

The university flatly denied her claim, saying Fisher's grades and test scores were simply too low to get her in, no matter what her extracurricular activities or her race.

The first time the case was argued, then-UT president William Powers defended the university's approach on the steps of the Supreme Court. No university, he said, would fill all of its slots based on class rank alone. "You could have been the student body president. You could have been the winner of the state math contest and you have zero chance to get into the University of Texas" under holistic review, he said.

The Supreme Court pondered the case in 2013 and after eight months sent it back to the Fifth Circuit Court of Appeals. The justices said that the lower court had deferred too much to the school's claims of good faith in its use of race in admissions, and they ordered the lower court to determine whether the university's use of race was as limited as possible in order to attain a diverse student body. But after taking another look, the appeals court again upheld the UT plan as constitutional.

The Case Returns to the Court

Now the case is back at the Supreme Court, with four justices who avowedly oppose any consideration of race, and one, Justice Anthony Kennedy, who is deeply suspicious of affirmative action programs.

The lawyers and strategists who have financed and promoted the Fisher case for seven years--well after she graduated from another school--have declined interview requests.

But their brief contends that what UT really wants is an affirmative action program for the children of relatively affluent minority families who attend good schools but fall short of the class rank cut off.

The university's lawyer, Gregory Garre, calls that a "perverse fabrication."

"Students coming in through holistic review, African-American and Hispanic students, actually have higher SAT scores than their counterparts coming in through the Top 10 Percent law," he observes.

"And in fact," he adds, "if you look at 2008, the year that Miss Fisher's application was decided, the holistic admits--minority admits--fared better academically at the University of Texas than Top 10 Percent admits."

Conservative Challenge to Holistic Review

Ilya Shapiro of the conservative Cato Institute, who filed a brief supporting Fisher, is unpersuaded.

"This holistic review for that little sliver of the admissions pie is a black box," he says.

Wednesday's argument takes place at a time of particular racial sensitivity and unrest in the country, with videos of police shootings spurring Black Lives Matter protests not just on city streets, but on college campuses where minority students complain bitterly of feeling disrespected and isolated.

The Cato Institute's Shapiro subscribes to the theory pioneered by some social scientists that affirmative action actually promotes that isolation on campus.

"Racial preferences take racial minorities that would otherwise be at very good schools and bump them up a notch to some place where they end up being disproportionately in the lower 10, 25 percent of the academic population," Shapiro maintains. "And precisely that feeling of 'not being good enough' produces disaffection that produces feelings of loneliness and not fitting in."

"I think it's a fairly cynical way of looking at things," replies the university's Garre.

He contends, moreover, that the record at UT disproves the theory Shapiro espouses. "African-Americans and Hispanics coming in through the holistic review plan have performed well academically at the University of Texas," Garre says.

Abigail Fisher's lawyers contend that, in any event, holistic review is unnecessary because the Top 10 Percent law creates enough diversity. Moreover, for the first time in this case, the Fisher legal forces seem to challenge the idea, previously accepted by the Court, that universities have a compelling interest in admitting a diverse student body in the first place.

Justice Kennedy, likely the key vote in Wednesday's case, has long agreed that having a diverse student body is sufficiently important to justify consideration of race in admissions, but only if all other race-neutral systems have been tried and failed--like consideration of economic status.

"We have a record of seven years during which the University of Texas tried all the race-neutral alternatives that Miss Fisher has pointed to, and we know what happened," Garre says. "Diversity plummeted."

That assertion, however, may not be enough for Justice Kennedy who, while embracing the idea of diversity in theory, has yet to see an affirmative action plan he thought was justified in fact.